1. By his Originating Summons dated 1 March 1986 supported by his affidavit sworn on 28 February 1986 the plaintiff applied for four declaratory reliefs as follows:

   1. That the Instrument of Dissolution dated 24 February 1986 executed by the first defendant dissolving the Sabah State Legislative Assembly (announced by the second defendant on 26 February 1986) is null and void and of no effect.

   2. That the Sabah Legislative Assembly has not been dissolved notwithstanding the acts of first and second defendants.

   3. That notwithstanding the purported dissolution referred to in Prayer 1, the Sabah State Legislative Assembly continues.

   4. That the third, forth, fifth, sixth, seventh and eighth Defendants are not entitled to act under article 113 of the Federal Constitution and call or conduct a general election under article 21(4) of the Sabah Constitution.

2. By ex parte Summons-in-Chambers of even date the plaintiff also applied to restrain the third to ninth defendants by himself or by any person acting on his behalf from acting under article 113 of the Federal Constitution upon the Proclamation of Dissolution until the hearing and disposal of the main Summons. The Summons-in-Chambers came up for hearing on 1 March 1986 and I ordered that all defendants be served and adjourned it to 12 March 1986 for full arguments in Chambers.

3. The plaintiff’s application for the injunction is supported by the plaintiff’s second affidavit (2A) sworn on 28 February 1986. In para 4 of (2A), the plaintiff gave four grounds in applying for the interim injunction against the third to eighth defendants. They were:

   1. There is a serious question to be tried in the main action. Under this heading the plaintiff alleged that the issue raised in the main Originating Summons is the constitutionality of the actions of the first and second defendants in dissolving the Sabah Legislative Assembly. Plaintiff contended that the dissolution or purported dissolution of the Legislative Assembly announced on 26 February 1986 is null and void and of no effect. That being so the plaintiff says that the third to eighth defendants are therefore not bound to act on that declaration of dissolution. The plaintiff’s counsel urged on the Court to find that there are raised several factual issues as to whether the first defendant was advised by the second defendant to dissolve the Assembly. As evidenced, he says, by paras 5 to 7 in Enclosure (7), the affidavit sworn by the first defendant, the first defendant says he was advised and requested whereas as reported, in “AGHS–8” in Enclosure (3), a press release by the second defendant, no mention was made of any request. Plaintiff’s counsel urged on this Court to consider the importance of this fact in view of the requirement of the Sabah State Constitution, article 10(1) that first defendant should act on advice in the exercise of his functions under the Constitution and that the first defendant may exercise his discretion only in article 10(2)(b) and article 10(4) thereof. Learned counsel further urged that there has in fact been admission by the first defendant he had acted on the second defendant’s advice.

   2. The next serious question to be tried according to plaintiff’s counsel is a question of law. If the first defendant has a discretion whether to accede to a request to dissolve but instead acted on advice it becomes a case of abdication or surrender of discretion, plaintiff’s counsel urged.

   3. Thirdly, whether in dissolving the Sabah Legislative Assembly while the issue as to who is the real Chief Minister (in Civil Suit No K467 of 1985 — judgment on 15 April 1986; [1986] 2 MLJ 420) is still under a cloud amounts to a breach of the doctrine of the separation of powers — an encroachment by the Executive upon the Judicial powers of the Federation and consequently plaintiff says void.

   4. Then fourthly, whether the Election Commission is under a constitutional duty to act upon any proclamation of dissolution or only a valid and constitutional dissolution. These issues, the plaintiff’s counsel submitted merit mature consideration, require argument and careful consideration and are matters not to be summarily dismissed.

4. As the application was primarily directed against the third to eighth defendants, though affecting the rights of the first and second defendants, counsel for the third to eighth defendants was asked to reply first. In the course of her submission, Miss Mary Lim, counsel for third to eighth defendants, correctly pointed out that the fifth defendant is not a member of the Commission. On her application and conceded to by the plaintiff’s counsel the summons against the fifth defendant was struck out with costs to him and the Court substitutes the fifth defendant to seventh defendants for sixth to eighth respectively.

5. Counsel for the third to seventh defendants submitted that an injunction is not available to the plaintiff on the ground that under s 29(2) of the Government Proceedings Ordinance, no injunction could be granted against an officer of the Government if the effect of granting the injunction or making the order would be to give relief against the officers which would not have been obtained in proceedings against the government.

6. She referred the Court to the definition of “officer” in the definition section of the said Ordinance which in relation to government includes a person in the permanent or temporary employment of such government which includes Federal or State Government. She also referred us to s 7 of the Election Commission Act (Act 31), Bundle (D4), pages 54 and 55, where the members of the Election Commission are deemed to be public servants within the meaning of the Penal Code. Also referred to is the Ninth Description in s 21 of the Penal Code as to what a “public servant” denotes and also to the definition of officer in the Interpretation and General Clauses Ordinance 1948, as meaning a person in the permanent or temporary employment of any government. She urged on the Court by analogy the Judges of the High Court like the members of the Commission can also be regarded as “officers” of the government though both having been appointed by the Sovereign, both independent of each other and of the government — the Executive having no right to give instruction to either of them.

7. In the present application, she submitted, it was unlike an application directly against the government as in Tengku Hj Jaafar v Government of Pahang [1978] 2 MLJ 105 when it was said injunction could be granted but not granted therein against the government. The Plaintiff’s application coming under s 29(2) of the Government Proceedings Ordinance, a stricter provision than s 29(1), cannot be granted as s 29(2) prohibits the Court from granting any injunction against an officer of the government if the effect of which is to give relief against the government which the plaintiff could not have obtained against the government. Counsel cited authority No 1 to No 4 in Bundle D4 in supporting her argument that no such injunction can be obtained.

8. In the course of the argument learned counsel for the third to seventh defendants also applied for the Originating Summons against them be struck out as, she submits, the summons discloses no cause of action against them for other than identifying them as defendants there are no paragraphs or pleadings against them. Counsel claimed she was entitled to make the oral application under O 12, r 7, of the Rules of the High Court. She went on to submit such an action had been taken in the case of Tio Chee Hing v Government of Sabah [1981] 1 MLJ 207 and a similar order was given in Federal Court Civil Appeal No 274 of 1984. She submitted as no cause of action is disclosed the Originating Summons against the third to seventh defendants ought to be struck out.

9. Mr. Lester for first and second defendants submitted that although primarily the injunction sought is against the third to seventh defendants nonetheless it cannot be denied that if granted the effect in substance is tantamount to a mandatory interlocutory injunction against the first and second defendants; in effect setting aside the proclamation for dissolution which order the plaintiff could not have against the first defendant or second defendant. Mr. Lester also made a few other preliminary observations to the effect that on the serious triable issues the Court in applying the American Cyanamid v Ethicon Ltd [1975] AC 396 principle may have regard also to special or special factor cases in which the degree of probability of success of the plaintiff’s claim is a factor to be weighed in the balance of convenience or in the public interest or that of justice consideration. See NWL Ltd v Woods [1979] 3 All ER 614, Cayne v Global Natural Resources [1984] 1 All ER 225 and Smith v Inner London Education Authority [1978] 1 All ER 411.

10. On the question of whether the first defendant was entitled to treat the second defendant as the Chief Minister as regards the dissolution of the Legislative Assembly counsel for the first and second defendants submitted that it is not a serious triable issue to be tried because plaintiff lacks the locus standi to be so retried. To order so would only result in duplicity as that issue had been fully canvassed before my brother, Datuk CT Tan J.

11. There remains only the alleged “delayed dissolution issue” which he submitted is not seriously triable since the two days’ delay in announcing the first defendant’s decision to dissolve the Assembly cannot be said to have prejudiced the plaintiff as 90 days is allowed by the State Constitution. In reply to Mr. Sri Ram’s allegation that the first defendant acted on advice or discretion and there is conflict of evidence, Mr. Lester submitted no such conflict exists. From first defendant’s affidavit (7), Paras 6, 7 and 16, it was clear, he submitted that first defendant did not act on advice alone but in fact from Enclosure (9) it was advice and request. The second defendant said he advised and requested while first defendant says he acted under article 10(2) and article 21 independently and not acting under advice of second defendant.

12. In reply to what the plaintiff submitted under the heading A item two of his written submission on the question to be tried, if the dissolution was the second defendant’s decision, Mr. Lester submitted there was no evidence before the Court to support the allegation that the second defendant advised the first defendant to dissolve the Sabah Assembly in order to defeat plaintiff’s claim in Civil Suit No K 467 of 1985 (Mustapha Harun v Mohammed Adnan Robert [1986] 2 MLJ 391, 396 judgment referred to). It was further contended that it was mere allegation that the first defendant acted as a rubber stamp. Mr. Lester says the only evidence if at all as is the press release, “AGHS–8” in Enclosure (3).

13. As to the issue whether the first defendant was entitled to treat the second defendant as Chief Minister when his appointment is still under a cloud, reverted to in plaintiff’s submission under the heading A item three, Mr. Lester answers that the second defendant’s gazetted appointment under s 5 of the Chief Minister (Incorporation) Ordinance, and by s 4(3) of the Evidence Act 1950 (read with s 5 of the said Ordinance) in the absence of bad faith or misconstruction of first defendant’s power, is conclusive proof of his appointment. No evidence shall be allowed to disprove that the second defendant’s appointment was duly made. This is coupled by the fact that at the time of dissolution no Court had finally determined that second defendant is not Chief Minister and he also submitted that it is to be presumed that official and judicial acts are rightly and regularly performed. Apart from example (E) to s 114, Mr. Lester also cited the judgment of Lord Diplock in Hoffman-La Roche v Trade Secretary [1975] AC 295 at pages 101 and 102 of Bundle (B) D2 stating there is a presumption in favour of an order’s validity prevailing so long as there is no final judgment in that action to the contrary.

14. In regard to Mr. Sri Ram’s citation of CJ Barwick’s statement that the act of dissolution was an Executive act [page 118 of Bundle (P1)], Mr. Lester pointed to the Court that CJ Berwick’s statement was a minority statement whereas the majority view that it was Legislative is at pages 471 and 472 of that case and in the judgment of Menzies J at page 461 and that of Gibbs J at page 467.

15. As for the allegation of usurpation of the Court’s powers in particular my brother, Datuk Justice CT Tan's decision, Mr. Lester submitted there is no usurpation. In dissolving the Legislative Assembly of the State of Sabah the first defendant was acting in his own sphere and in Datuk Tan J deciding the issues of facts and law which had been placed before him he would be deciding within his jurisdiction with powers to reward the winner and punish the loser. If the plaintiff in that main case succeeds his reputation and the reputation of his witnesses will be vindicated. If however the defendant succeeds the first and second defendants and his witnesses will be vindicated. It is not denied, he says, that the holding of an election may deny the plaintiff in that case (Tun Mustapha) from being Chief Minister if the order of the Court says so but he may be still so by the peoples’ vote. It has happened that an Executive act or Legislative act may deprive the fruits of proceedings but it is not usurpation. He cited a few instances such as Government of Malaysia v Zainal [1977] 2 MLJ 254 (affirmed by PC [1979] 2 MLJ 276), Burma Oil (1929) LR 56 IA 140 and KC Cheah v Petroas [1979] 1 MLJ 25. Mr. Lester also commented that it is unmeritorious on plaintiff’s part to make this application as Tun Mustapha as the person alleged to be affected did not proceed with the appeal and did not join the plaintiff to seek relief. He submitted that the first defendant was fully entitled to treat second defendant as Chief Minister and referred to Enclosure (9), para 4.

16. As to Ground five of the plaintiff’s submission, Mr. Lester submits that as other points will not merit serious triable issues so Ground five would also not arise. He submits that on all grounds there are no serious questions to be tried based on American Cyanamid test.

17. Lastly Mr. Lester questioned the locus standi of the plaintiff to bring this suit. He cited Othman Saat v Mohamed Ismail [1982] 2 MLJ 177. He submitted the plaintiff is a stranger and had no genuine interest and the Court has been urged to consider that authority.

18. On the question of balance of convenience, Mr. Lester submitted that the application of American Cyanamid [1975] AC 396 is qualified by two important considerations of the “special cases.” The Court should evaluate the respective merits of both parties. Will the grant of an interlocutory injunction finally and effectively decide the Originating Summons itself?

19. He submitted that the present application comes into the “special case” and the Court should consider the balance the likelihood whether the plaintiff would succeed bearing in mind the time factor of 90 days for the Election Commission to hold election. If plaintiff is granted the interlocutory injunction it will finally decide the Originating Summons for the reason that one of the premises on which this injunction is founded is the allegation that the second defendant is not the lawful Chief Minister. This question had been canvassed in full in the trial before Datuk CT Tan J having taken 3½ months comprising 500 pages of submissions and 1000 pages of written evidence. Counsel submitted it is unreasonable and unrealistic to say that the issue would be resolved before Datuk Tan J’s judgment on 15 April 1986, (see Mustapha Harun v Mohamed Adnan Robert [1986] 2 MLJ 420. In the case of the Election Commission he submitted the protracted Court hearing including appeals will make it impossible for the Election Commission to hold the election within the 90 days as proclaimed. If granted plaintiff would halve had all the relief obtained in the main action as it would then have effectively prevented the Election Commission from performing its work. Counsel cited NWL Ltd v Woods [1979] 3 All ER 614 Bundle D2 page 127, 128 and 133 and said there would be nothing more left for the first and second defendants to proceed to trial.

20. Mr. Lester submitted that in Cayne v Global Natural Resources [1984] 1 All ER 225 type page 108 and page 115 of (D2) balance of convenience would no longer have to be weighed. The test is what can the Court do in its best endeavour to avoid injustice? Counsel submitted that in the present case the Cayne and NWL type of consideration would apply.

21. Mr. Lester also submitted that if the Court rules against him on the above submissions he refers to paras 27 and 28, Enclosure (7), which enumerates the reason why a balance of convenience is against granting the relief prayed for.

22. In deciding whether to grant this relief counsel also submitted that the Court is to weigh public interest as was done in Smith v Inner London [1978] 1 All ER 411 and since the plaintiff is seeking an injunction against a public authority to prevent it from performing its public duty the consideration need not only be balance of convenience but also the wider public interest of good government and the stability of the State Government of Sabah. One factor of weighing in the public interest he submitted is the discretionary power vested in the first defendant. He has explained why he dissolved. In considering balance of convenience this should weigh heavily against granting relief and the court would be reluctant to grant one as plaintiff had not suffered damage. He submitted that as regards plaintiff wanting to preserve the status quo he did not seek to preserve the status quo but status quo ante, the position before the proclamation.

23. Finally Mr. Lester submitted that the plaintiff’s application for an injunction is affected by laches not in the sense that he was late in his application but that the plaintiff had acquiesced to the second defendant’s appointment as Chief Minister since 22 April 1985. In Enclosure 9, para 9, it is alleged that the plaintiff had acquiesced and supported him. Plaintiff had never shown that, second defendant was not the Chief Minister and that the first defendant would not regard him as one.

24. He submits that this is another reason why the interlocutory relief should be refused.

25. Mr. D Puthucheary on behalf of the first and second defendant submitted that he adopted submission of counsel for the third to seventh defendants relating to jurisdiction of the Court to grant injunction under s 29 of the Government Proceedings Ordinance. He stressed that the words “government” and “officer of government” were capable of larger concept and wider interpretation and not limited to officers in the Executive position only. Mr. Puthucheary also submitted that the reason for the Federal Court allowing the appeal of the Federal Counsel in the Federal Court Civil Appeal No 274/84 was that no injunction could be issued against a government or the process of government. In the present case although the date for election had not been fixed but the Election Commission, as in Encl (6), Exh “JDB–1”, had stated that election would be about 10 or 11 May. He also drew a difference in the filling of a casual vacancy by the third to seventh defendants as opposed to the situation following a dissolution which shall be filled by 90 days.

26. In reply Mr. Sri Ram submitted that as to the third — seventh defendants’ counsel’s application to have the summons struck out she should have applied by summons in order to give the plaintiff notice and as for the cause of action the Originating Summons is the pleadings. He relies on Enclosure (2A) why the injunction is sought principally against third — seventh defendants since they should not act on an invalid dissolution. They cannot enquire but the Court can do so and grant an injunction until the question is resolved.

27. On jurisdiction to grant injunction Mr. Sri Ram submitted it is available against the government and for “government” we have a definition and whether the Election Commission members are officers of government or a part of government is an open question. In reply Mr. Sri Ram said the five grounds he relied on are not the only grounds but are part of his grounds. Essentially the plaintiff’s case is that he is an Assemblyman and he is seeking a declaration that the Assembly had not been constitutionally dissolved by acting on an advice of a Chief Minister whose title is disputed. Then whether the proclamation is valid. Briefly what the plaintiff contends as well is that the dissolution is a nullity due to date of announcement and fettering of discretion and discretion is invalid.

28. Mr. Sri Ram drew a distinction between those cases such as Burma Oil (1929) LR 56 IA 140 2 MLJ 276, Government of Malaysia v Zainal Hashim [1977] 2 MLJ 254 (affirmed by PC, [1979] 2 MLJ 276) — Bundle D1 page 352 supra, and KC Cheah v Petronas [1987] 1 MLJ 25 in that those cases were cases where a party’s right had been destroyed by a Legislative act. In the present case, plaintiff is taking a challenge that the dissolution is void. As for unmeritorious allegation what plaintiff is saying is that the first defendant has no power to grant a delayed dissolution and he had abdicated his discretion. As for the objection to plaintiff’s locus standi Mr. Sri Ram submitted his client was the Assemblyman and he is entitled to say that the Assembly still subsists — and not dissolved. On balance of convenience and allegation that if granted there will be left nothing to try the prime consideration should be to prevent the third — seventh defendants from proceeding on an unconstitutional dissolution and plaintiff alleges what is supreme is observation of the Constitution and abiding by the law. As for the allegation of laches plaintiff did not come then because he did not have the evidence of a dissolution — it was then speculative. Plaintiff submits that he has made out a prima facie case for an injunction.

    CONCLUSION

29. Firstly before anything else I would like to clear the oral application made by counsel for third — seventh defendants to have the Originating Summons struck out against them. I refer to the counsel’s application. It is clear under the order sought by her such application should be made by summons for reason that the plaintiff should have notice of such a serious step being taken against him. Indeed in the case quoted by learned counsel the application made was under O 25 r 4 of the Rules of Supreme Court 1957 which now is O 18, r 19, of the current High Court Rules 1980. As for counsel’s contention that there was absence of pleadings I agree with plaintiff’s counsel that Prayer four of the Originating Summons Enclosure (1) is the pleadings — the declaration plaintiff is seeking. The first and second defendants raised the question of locus standi of the plaintiff to bring this action and the question of laches. On the question of locus standi I agree with the submission of plaintiff’s counsel that he has one since he was a member of the Sabah State Assembly which was directly affected by the proclamation dissolving the State Assembly which he applies to be declared void. He is affected by the order of dissolution directly.

30. On the question of laches as was pointed out by Mr. Lester, counsel for first and second defendants, it is not laches in bringing this action late that is complained of by the plaintiff but it is delay in bringing the issue of second defendant’s title to the office and he acquiesced to his appointment on plaintiff’s part and in blowing hot and cold in respect of his support for him. As my decision on this application for the injunction turns on other points I find it not necessary that I should decide on the matter raised.

31. On the delayed dissolution issue I agree with Mr. Lester’s submission bearing in mind that election could take place in 90 days, that no injustice is caused anybody by a delay of two days.

32. Before I proceed to discuss the substantial application for injunction I must remind myself that I have been asked to exercise a discretionary power. Such a discretion is to be judicially exercised based on well-known principles.

33. I have to remember that the application is only against the third to seventh defendants, members of an Election Commission. It has not been asked for against the first and second defendants. Nonetheless, as pointed out by their counsel, Mr. Lester, in submission, if the injunction is granted in substance though not in form, it would have the effect of a mandatory injunction against them to which I agree and it cannot be more clear. What I must also remember is in this application I am far from trying this substantive matter and that being so I must refrain from saying any thing which has the effect of pronouncing any judgment on the issues being discussed which must be done and can only be done when these issues are properly tried. In other words I am not to prejudge the issue.

34. What has the plaintiff to show if he were to succeed in his application for this injunction? In American Cyanamid’s case he has to show that the claim is not frivolous or vexatious and there are serious questions to be tried.

35. According to plaintiff’s submission the first question he posed is whether in dissolving the Assembly the first defendant had to act on advice or had a discretion in the matter. The second question the plaintiff alleged to be triable is that if the defendant has a discretion whether to accede to a request to dissolve but instead acted on advice then it becomes a case of abdication or surrender of discretion.

36. To my mind the answer to the two above questions lies in the interpretation of the relevant articles. I find as a fact that from the affidavits of first defendant, Enclosure (7) and second defendant, Enclosure (9) there was advice and request to have the Legislative Assembly of the State of Sabah dissolved. First defendant deposed that he used his discretion and acted independently. It cannot be denied that the first defendant can exercise his discretion to withhold consent under article 10(2) of the Sabah Constitution. The article plainly speaks for itself. Is the first defendant to agree right away if there was advice or a request to have the Assembly dissolved? If he is then it can be said he has no discretion but article 10(2) says so plainly he has a discretion to withhold consent. In my view the proper construction to be put to it would be he would have to consider, as he is vested with that power to do, whether to agree or to withhold consent. In his search for that decision he is of course not debarred from consulting anyone and obtaining the best advice and that in doing that consultation and obtaining that advice, first defendant in no way abdicated or surrendered that discretion. The decision will still be his and his alone. The people he consults do not decide for him and how can it be said he surrendered or abdicated. On the analogy of a Court proceeding when one calls for expert witnesses they do not substitute the Court it is the Court that makes the decision.

37. As for the third question whether the first defendant is obliged to act on advice, this I have answered in my consideration of the second question and since the first defendant was not obliged the other part of the question does not arise.

38. Plaintiff also says there is triable issue in the fourth ground advanced by him in that as the question as to who is the real Chief Minister is presently being considered by a judicial power of the Federation (judgment due to be delivered on 15 April 1986); the dissolution being an Executive act, according to plaintiff there is a triable issue that the dissolution is an encroachment of judicial powers.

39. Is the dissolution of the State Legislative Assembly of Sabah an Executive act? According to the majority view of this case, Cormack v Cope (1974) 131 CLR 432, 471, it is Legislative. In that case Stephen J, at page 471 said:

    .... but I may say that I would regard the acts of the Governor-General, undertaken in pursuance of s 57, in dissolving both Houses and in convening a joint sitting as different in character from the familiar Executive acts of the Governor-General in Council which were said by the Plaintiffs to be analogous and which were relied upon in that way as justifying judicial intervention in this instance. Both the act of dissolving both Houses and that of convening a joint sitting are undertaken not much in the exercise of the Executive power vested by s 61 as in performance of a power conferred by s 57 upon his Excellency as personal designata and inextricably involved in a Legislative process .... s 57 lays down a complex procedure lying well within the ambit of Legislative process ....

40. Following this authority I am satisfied that dissolution of the Legislative Assembly of Sabah by the first defendant under article 21(2) of the State Constitution is a Legislative act and not an Executive act and that is consistent with the first defendant’s position in Sabah Constitution article 13 which provides that the Legislature of the State shall consist of the first defendant and the Legislative Assembly. If I am right in holding that the act of dissolution is a Legislative act in no way can the Court intervene and that there is therefore no triable issue that there was encroachment. I have but to agree with the submission of counsel for the first and second defendants that Datuk Justice CT Tan's Court and the first defendant were proceeding in each other’s sphere undeniably in this case with the unfortunate result that if the plaintiff, in Datuk CT Tan J’s court, be successful he may be robbed of the fruits of that judgment but most important consideration to remember being that in no way affects the validity of the first defendant’s proclamation of dissolving the Assembly which is valid and cannot be interfered with by any Court injunction (Cormack v Cope, supra). Having held that the first defendant’s dissolution was an act in his own sphere it is then unnecessary to dwell on the fifth reason of the plaintiff whether the Election Commission is under a constitutional duty to act upon the proclamation. The answer can only be the third to seventh defendants have no choice but to act.

41. It is my decision therefore that there are no serious triable issues to go to trial for reasons given above. In the exercise of my discretion I therefore hold that no interlocutory injunction be issued against the third — seventh defendants. In case that I should be in error in my above finding that there are no serious triable issues I proceed to consider whether or not I should issue an interlocutory injunction against the third — seventh defendants on the balance of convenience. In whose favour does the balance of convenience lie?

42. In answering this question I am satisfied that the present case falls in one of the “special” or “special factor” cases that qualify or is an exception to the American Cyanamid principles. I say so because of the time factor of 90 days within which election is to be held under article 21(4) of the State Constitution following the dissolution of the Assembly and also the issue of the right Chief Minister, in this Originating Summons, which happens to be also the litigated issue, the subject matter of Civil Suit No K 467 of 1985. Although the decision in Civil Suit K 467/85 Will be delivered on 15 April 1986 it is unrealistic to say that the issue will be or can be resolved within the 90 days bearing in mind that trial took 3½ months and with records of 1,000 pages of Notes of Evidence and 500 pages of written submissions. It is not unreasonable to expect that the decision on 15 April 1986, would not end there and on appeal the records would have to be prepared and got ready. The Court would have to take judicial notice that that issue will not be resolved within the 90 days allowed to the Election Commission to hold the elections. In the meantime if the injunction is granted against the third to seventh defendants they will be dragged in uncertainty. If the plaintiff fails the clear result will be the first and second defendants and the people of Sabah would have lost the opportunity of taking part in a lawful election. It would give the plaintiff the relief that he would be able to obtain in the main action.

43. In this connection it may be relevant to consider the balance of convenience following the test of Smith v Inner London Education Authority [1978] 1 All ER 411 on the need to weigh public interest since the plaintiff is seeking an injunction against the third — seventh defendants, members of a public authority. The injunction although against them in substance affects the first and second defendants and the exercise of a discretionary power under the State Constitution by the first defendant. In this case it. may also be relevant to consider the prospect of the plaintiff’s succeeding. It is correct statement, I think, that the proclamation, until it is finally declared null and void, and it is not likely to be so declared in 90 days as stated above, has to be presumed valid as was stated by Lord Diplock in Hoffman-La Roche v Secretary of State for Trade & Industry [1975] AC 295 That being the case the chance of plaintiff succeeding in the main action in my view is slim. That being so the plaintiff therefore cannot show that he has a real prospect of success. The interest of the public therefore outweighs and this application can only result in refusal to grant the relief sought for.

44. As my view of the proclamation is that it is prima facie valid, until it is declared otherwise, in the face of that finding the clear duty of the Election Commission can only be to hold an election within the prescribed period. Since it is the clear duty of third to seventh defendants what reason can the Court give for issuing an order preventing the third to seventh defendants from performing their clear constitutional duty? In the public interest or in the interest of justice I exercise my discretion and refuse to issue an injunction against the third to seventh defendants.

45. If I am still in error the next question will be has the Court the jurisdiction to issue this injunction against the third to seventh defendants? That leads me to consider whether the third to seventh defendants are officers of the government. Miss Mary Lim, counsel for the third to seventh defendants, citing various authorities, contended they are and therefore under s 29(2) of the Government Proceedings Ordinance 1956 no injunction could be given against them as the effect would be giving the plaintiff relief which he could not have obtained against the government. Mr. Sri Ram, counsel for plaintiff, contended they are not also after citing several provisions of the Federal Constitution. Alternatively, even if they are so on the authority of Tengku Haji Jaafar v Government of the State of Pahang [1978] 2 MLJ 105 nonetheless injunction can be granted.

46. I rule they are officers of government and in my view they cannot be otherwise. The slight confusion occurs because the statute creating that body or department has given them certain privileges and restricts the appointees to a certain category of persons that seems to set them apart from members of the public service. That their funds they utilise be charged on the Consolidated Fund is to give them a certain degree of independence so that their salary would not be subject to the discussion of Parliament unless the Act which created them is properly under discussion. Stripped of all that they are officers in the employ of the Federal Government. The definition of “officer” in the Government Proceedings Ordinance in relation to a government includes a person in the permanent or temporary employment of such government. It cannot be denied that the third to seventh defendants are in the employment of the Federal Government. In my view there cannot be other interpretation as their salaries are paid by the government.

47. An injunction has been asked for when none can be given. For reasons I have stated above, I exercise my discretion that no injunction can be granted against the third to seventh defendants and I therefore dismiss the plaintiff’s application for injunction against third to seventh defendants with costs.

Cases

Tengku Jaafar v Government of Pahang [1978] 2 MLJ 105; Tio Chee Hing v Government of Sabah [1981] 1 MLJ 207; American Cyanamid v Ethicon Ltd [1975] AC 396; NWL Ltd v Woods [1979] 3 All ER 614; Cayne v Global Natural Resources [1984] 1 All ER 225; Smith v Inner London Education Authority [1978] 1 All ER 411; Tun Datu Haji Mustapha Datu Harun v Tun Datuk Haji Mohamed Adnan Robert [1986] 2 MLJ 391; Hoffman-La Roche v Secretary of State for Trade & Industry [1975] AC 295; Government of Malaysia v Zainal Hashim [1977] 2 MLJ 254; U Po Naing v Burma Oil [1929] 56 LR IA 140; KC Cheah v Petronas [1987] 1 MLJ 25; Tan Sri Haji Othman Saat v Mohamed Ismail [1982] 2 MLJ 177; Tun Datu Haji Mustapha Garun v Tun Datuk Haji Mohamed Adnan Robert [1986] 2 MLJ 420; Cormack v Cope (1994) 131 CLR 432

Legislations

Federal Constitution: Art.113

Sabah Constitution: Art.10, Art.21(4)

Government Proceedings Ordinance 1956: s.29(2)

Chief Minister (Incorporation) Ordinance: s.5

Evidence Act 1950: s.4(3)

Representations

Gopal Sri Ram (Dr Yaacob Hussain Merican and Dr Tunku sofia Jewa D Bosi with him) for the first and second defendants.

Miss Mary TS Lim (Federal Counsel) for third to eighth defendants.